Fraternal Order of Police v. City of Newark

Becket Fund president Kevin Hasson argued before the Third Circuit on behalf of amici The Becket Fund for Religious Liberty, the A.C.L.U.-N.J., and the Anti-Defamation League that two Muslim police officers in Newark, N.J. should be permitted to continue to wear beards on the force as they had since the 1980's. The City of Newark recently issued an order requiring police officers to be clean-shaven. However, it exempted those who had medical reasons for not shaving but offered no exemption for religious reasons. The two officers are required by their faith to wear beards, and thus were being forced by the city to choose between their religion and their jobs.

On March 3, 1999, the Court of Appeals unanimously ruled in favor of the officers, holding that Newark's policy violated their religious freedom rights under the First Amendment. Read the opinion here. Read our press release here.

The Court of Appeals held that granting medical exemptions but refusing to hear any claims by officers for an exemption for religious reasons violated the Constitution. "When the government makes a value judgement in favor of secular motivations, but not religious motivations, the government's actions must survive heightened scrutiny." The city's grooming policy, the court found, created a "categorical exemption for individuals with a secular exemption for individuals with a secular objection but not for individuals with a religious objection," and such discrimination may only be justified for compelling reasons and applied in a carefully tailored fashion.

Analyzing the city's justifications, the court concluded that it had not met its burden for denying an exemption to the two officers. The court rejected the City's justification that, to preserve "morale and esprit de corps," it must maintain a "monolithic force":

Conceivably, the Department may think that permitting officers to wear beards for religious reasons would present a greater threat to the sense of uniformity that it wishes to foster because the difference that this practice highlights -- namely, a difference in religious belief and practice -- is not superficial (like the presence of pseudo folliculitis barbae) and thus may cause divisions in the ranks and among the public. (There is no doubt that religious differences have been a cause of dissension throughout much of human history.) But if this is the Department's thinking -- and we emphasize that the Department has not spelled out this argument in so many words -- what it means is that Sunni Muslim officers who share the plaintiffs' religious beliefs are prohibited from wearing beards precisely for the purpose of obscuring the fact that they hold those beliefs and that they differ in this respect from most of the other members of the force. In other words, if this is the real reason for the distinction that is drawn between medical and religious exemptions, we have before us a policy the very purpose of which is to suppress manifestations of the religious diversity that the First Amendment safeguards.

July 1, 1999. After losing in the Court of Appeals, the defendants petitioned the Supreme Court to hear the case. We began representing the plaintiffs at that point and filed a Brief in Opposition on July 1, 1999.

UPDATE: On October 4, 1999, the Supreme Court denied defendants' petition for certiorari (No. 98-1919). Read that day's Order List here.

Major Dates and Filings

• May 4, 1998 Brief amicus curiae filed.
• June 25, 1998 Argument before the Third Circuit.
• March 3, 1999 Third Circuit's Decision.
• July 1, 1999 Brief in Opposition filed in the Supreme Court.
• October 4, 1999 Petition for Certiorari denied.

Articles & News Items

• "Becket Fund Defends Muslim Police Officers' Right to Wear Beards," June 22, 1998
• "Muslim Police Officers Can Keep Their Beards," March 4, 1999
• "U.S. Supreme Court Denies Review of Religious Beard Case," October 4, 1999